Village Mgt. Inc. v Silva

[*1] Village Mgt. Inc. v Silva 2018 NY Slip Op 51352(U) Decided on August 17, 2018 Civil Court Of The City Of New York, New York County Capell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 17, 2018
Civil Court of the City of New York, New York County

Village Management Inc., Petitioner/Landlord,

against

Magdalena Silva, Respondent/Tenant, "JOHN DOE" and/or "JANE DOE", Respondent/Undertenants.



55241/2018



Attorney for Petitioner:

Rose & Rose

James E. Bayley, of Counsel

291 Broadway, 13th Floor

New York, NY 10007

Attorney for Respondent:

Mobilization for Justice, Inc.

Ethan Han, of Counsel

100 William Street, 6th Floor

New York, NY 10038
Heela D. Capell, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion to dismiss the proceeding.

Papers/Numbered

Notice of Motion and Affidavits Annexed 1

Notice of Cross-Motion & Affidavits Annexed

Answering Affidavits 2

Replying Affidavits 3

Exhibits

Memorandum of law

Upon the foregoing cited papers, the Decision and Order on this motion to dismiss the proceeding is as follows:

Village Management, Inc. ("Petitioner") commenced this holdover proceeding based upon Magdalena Silva's ("Respondent") alleged breach of a substantial obligation of her tenancy. Petitioner served Respondent with a Notice to Cure dated January 9, 2018 ("Notice to Cure") which cure period expired on January 31, 2018, and subsequently, a Notice of Termination dated February 2, 2018 ("Termination Notice") that expired on February 16, 2018. Both sides are represented by counsel. The Notice to Cure provides that Respondent has breached three separate provisions of her lease by engaging in various acts that contributed to the infestation of, and failure to eradicate, bedbugs in the apartment. The acts include: Permitting multiple guests to stay in the apartment for short periods of time, failing to properly clean the apartment, cluttering the apartment with items such as seven "filthy mattresses," and installing wooden loft beds into the apartment walls. The Notice to Cure asserts that the apartment still has bedbugs and that Respondent continues to interfere with bedbug eradication.

Notably, the Notice to Cure provides the following instructions in order for the Respondent to effectuate a cure and avoid litigation:

. . . you must properly prepare your apartment for the exterminator, take the necessary measures to prevent bedbug infestation including but not limited to the thorough cleaning of the premises and the removal of all clutter and the removal of the illegal wooden beds, contact the landlord to inspect your apartment and to arrange extermination services for your apartment, and to provide continued access to the exterminator to eradicate the bedbugs. You must also cease and desist from hosting multiple guests for short-term stays in your apartment.

Respondent was required to cure the violations by January 31, 2018. The Termination Notice, dated February 2, 2018, stated in pertinent part: "your tenancy . . . is hereby terminated effective February 16, 2018 for the reasons that you failed to comply with the Notice to Cure, dated January 9, 2018, a copy of which is annexed hereto and made a part hereof and incorporated herein, as if fully set forth below."

Respondent now moves to dismiss the proceeding pursuant to CPLR 3211 § (a)(7) and (8) on three grounds. Respondent contends that the Termination Notice is defective because it does not state facts in support of the claim that Respondent failed to cure the violations alleged in the Notice to Cure; Respondent in fact cured the violations so the petition fails to state a cause of action; and the Termination Notice does not state a statutory basis for terminating the tenancy under the Rent Stabilization Code.[FN1]

Appellate authority provides that the standard by which to determine sufficiency of a predicate notice is whether the notice is reasonable in light of the attendant circumstances. (see Oxford Towers Co., LLC v Leites, 31 AD3d 144, 144 [1st Dept. 2007]; Hughes v Lenox Hill Hospital, 226 AD2d 4, 17 [1st Dept. 1996] lv denied 90 NY2d 829 [1997]). Namely, the notice must be sufficiently particular so that it does not mislead, confuse the tenant, or hinder the tenant in preparing a defense to the proceeding. (see Oxford Towers Co., LLC v Leites, 31 AD3d at 145).

Respondent cites (BEC Continuum Owners v Taylor, 2018 NYLJ LEXIS 1821 [Civ Ct, Kings County 2018]) and (76 W. 86th St. Corp. v Junas, 5 Misc 3d 596 [Civ Ct, New York County 2017]) which held that a notice of termination that fails to state facts to support the claim that Respondent failed to comply with the notice to cure is insufficient as a matter of law. Petitioner argues that the cases cited by the Respondent, which were decided by the Civil Court at the trial level, contradict Appellate holdings in the First Department. Indeed, in (East Vil. RE Holdings, LLC v McGowan, 57 Misc 3d 155[A] [App. Term 1st Dept. 2017]), (Amin Mgt LLC v Martinez, 55 Misc 3d 144[A] [App. Term 1st Dept 2017]) and 539 W. 156, LLC v Hernandez, 55 Misc 3d 144[A] [App. Term 1st Dept]), the Appellate Term held that the notices of termination were sufficient because they incorporated the notices to cure by reference and the notices to cure alleged the facts necessary to support the holdover proceedings (but see 31-67 Astoria Corp. v Landaira, 54 Misc 3d 131[A] [App. Term 2nd Dept. 2017])( "the termination notice was defective because it failed to allege that the defaults specified in the notice to cure, which were curable, had not been cured during the cure period"). Here the Termination Notice comports with these requirements because it incorporates the Notice to Cure by reference, and the Notice to Cure provides sufficient facts to support the proceeding.

Furthermore, Respondent was able to adequately articulate a defense to the proceeding based upon the Termination Notice, as evidenced by the instant motion and her detailed contentions that she cured the violations. (see Oxford Towers Co., LLC v Leites, 31 AD3d at 145) and (Jewish Theological Seminary of America v Fitzer (258 AD2d 337, 338 [1st Dept 1999]). Accordingly, the branch of the motion seeking dismissal because the Termination Notice does not contain supporting facts is dismissed.

Respondent next seeks dismissal on the grounds that she cure the violations alleged in the Notice to Cure and that the petition fails to state a cause of action upon which relief can be granted. Respondent asserts that after she was served with the Notice to Cure she immediately threw out a mattress, bed frame and three bureaus. (Resp. Aff. Par. 25). She also maintains that she cleaned the entire apartment and reorganized her belongings by placing items in large plastic containers. Id. Respondent attaches photographs of the bins and the subject apartment to her reply papers. (resp. Exs. O and P). The photographs also depict beds, supported by metal frames, which are not attached to the walls. Respondent argues that these photographs contradict the allegations in the Notice to Cure that she installed beds with wooden frames into the walls. Respondent also states that following service of the Notice to Cure, she consistently allowed access to the exterminators, except for on one occasion, and that in April 2018 the exterminators concluded that the apartment was free of bedbugs.

A motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7) must be denied if, from the four corners of the pleadings, "factual allegations are discerned, which taken together, manifest any cause of action cognizable at law." (511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002], citing Guggenheimer v Ginzburg, 43 [*2]NY2d 268, 275 [1977]). In such a motion, the court must accept the facts alleged in the pleading as true, afford the petitioner the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]); (Leon v Martinez, 84 NY2d 83, 87 [1994]). Courts also favor resolution of issues on the merits rather than by summary disposition. (Whitley v Black Watch Farms, 50 AD2d 549 [1st Dept. 1970]).

Here, the four corners of the pleading state a cognizable cause of action, to wit, that Respondent failed to cure the numerous violations alleged in the Notice to Cure. Respondent has not conclusively established that she cured all of the violations alleged in the Notice to Cure via the photographic evidence and affidavit annexed to the motion and reply. Respondent also acknowledges that the apartment was infested with bedbugs, required multiple treatments for eradication, contained numerous beds, and that the bedbugs were not eradicated until months after the cure period expired. Additionally, the gravamen of the Notice to Cure is not only that the bedbugs must be eradicated but that the apartment is cluttered and overcrowded, which perpetuates the infestation of bedbugs and vermin. Lastly, the issue is not ripe for summary disposition on this pre-answer motion to dismiss pursuant to the more lenient standard required by CPLR § 3211 where Petitioner is afforded every favorable inference; the arguments in this motion would be more appropriately presented in a motion for summary judgment pursuant to CPLR § 3212 which obligates the parties to lay bare their proof. (See Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986].) Accordingly, the branch of the motion seeking dismissal of the proceeding for failure to state a cause of action is denied.

Lastly, Respondent argues that it is fatal to the proceeding that the Notice to Cure and Termination Notice fail to state the provision of the Rent Stabilization Code upon which the proceeding is predicated. Respondent cites to Rent Stabilization Code ("RSC") § 2524.2(b) in support. RSC § 2524.2(b) provides:

Every notice to a tenant to vacate or surrender possession of a housing accommodation shall state the ground under section 2524.3 or 2524.4 of this Part, upon which the owner relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date when the tenant is required to surrender possession.

Contrary to Respondent's position, this provision does not require that the predicate notice reference a specific section of the RSC, but rather, inform the tenant of the ground under section 2524.3 or 2524.4 of the RSC "upon which the owner relies for removal or eviction of the tenant." Id. Here, the predicate notices advise Respondent that the Petitioner is seeking possession of the premises based upon Respondent's breach of a substantial obligation of the tenancy. This ground for eviction is provided for in RSC § 2524.3. The cases cited by Respondent in support of this branch of the motion do not hold that the predicate notices need to cite the section of the RSC upon which removal is based, but that they need to assert the factual grounds that support the proceeding. (see eg Stribula v Wien, 107 Misc 2d 114 [App. Term 1st Dept. 1980]); (Chinatown Apartments, Inc. v Chu Cho Lam, 51 NY2d 786 [1980]). As the predicate notices comply with RSC § 2524.2(b) by stating the grounds for removal under RSC § 2524.3, facts necessary to establish the ground and the date when Respondent was required to surrender possession, the last branch of the motion is denied.

Accordingly, the motion to dismiss is denied in its entirety. The proceeding is adjourned [*3]to September 27, 2018 at 9:30A.M. for trial. Respondent shall serve and file an answer to the proceeding by September 13, 2018.

This constitutes the decision and order of this Court.

Dated: August 17, 2018

New York, New York

__________________________

HON. HEELA D. CAPELL

J.H.C. Footnotes

Footnote 1:The motion also contained a branch seeking dismissal for lack of personal jurisdiction based upon improper service of the Termination Notice, however, Respondent's counsel withdrew that branch of the motion on the record on August 10, 2018.